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United States v. King, C.A.A.F. (2003)
United States v. King, C.A.A.F. (2003)
v.
Counsel
For Appellant: Captain Kyle R. Jacobson (argued); Colonel
Beverly B. Knott and Major Jeffrey A. Vires (on brief).
For Appellee: Captain C. Taylor Smith (argued); Lieutenant
Colonel LeEllen Coacher and Lieutenant Colonel Lance B.
Sigmon(on brief); Major Jennifer L. Rider and Captain Adam Oler.
Military Judge: W. Thomas Cumbie
following issues:
I.
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
MISINTERPRETED THIS COURTS DECISION IN UNITED
STATES V. ROCK, 52 M.J. 154 (C.A.A.F. 1999),
WHICH
HELD
THAT
PERIODS
OF
BOTH
ACTUAL
CONFINEMENT
AND
RESTRICTION
TANTAMOUNT
TO
CONFINEMENT MUST BE APPLIED AGAINST A MAXIMUM
CONFINEMENT LIMITATION IN A PRETRIAL AGREEMENT.
II.
WHETHER APPELLANT IS ENTITLED TO MASON CREDIT FOR
THE PERIOD DURING WHICH HE WAS RESTRICTED BECAUSE
THE RESTRICTIONS PLACED ON HIM WERE TANTAMOUNT TO
CONFINEMENT.
As to Issue II, we hold that Appellant is not entitled to
Mason credit because the pretrial restrictions placed on his
liberty were not tantamount to confinement.
We further hold
1985)(summary disposition).
Although
courts view, because the approved confinement was less than the
adjudged confinement would be if reduced by the number of days
Appellant was restricted, it did not matter that Appellant might
be entitled to Mason credit.
However,
In Mason, 19
United
United States v.
Factors to
consider include
the nature of the restraint (physical or moral),
the area or scope of the restraint (confined to post,
barracks, room, etc.), the types of duties, if any,
performed during the restraint (routine military
duties, fatigue duties, etc.), and the degree of
privacy enjoyed within the area of restraint. Other
important conditions which may significantly affect
one or more of these factors are: whether the accused
was required to sign in periodically with some supervising
authority; whether a charge of quarters or other authority
7
In
At trial,
It was
and the fact that Guerreros belated claim was made only on
appeal, our Court concluded that Guerreros restriction was not
tantamount to confinement.
Id.
8
Huffman,
40 M.J. at 227.3
As a result, taking into account Guerrero, Huffman, and
Smith, and considering the nature of Appellants pretrial
restriction and the fact he did not argue at trial that it was
tantamount to confinement, we hold that Appellants pretrial
restriction was not tantamount to confinement, and that he is
not entitled to any Mason credit.
Future Cases
The Court of Criminal Appeals felt compelled by our
precedent to consider Appellants request for Mason credit,
stated:
Ordinarily an appellate court does not give
consideration to issues not raised below. For our
procedural scheme contemplates that parties shall come
to issue in the trial forum vested with authority to
determine questions of fact. This is essential in
order that parties may have the opportunity to offer
all the evidence they believe relevant to the issues
which the trial tribunal is alone competent to decide;
it is equally essential in order that litigants may not
be surprised on appeal by final decision there of
issues which they have had no opportunity to introduce
evidence. . . . Recognition of this general principal has
caused this Court to say on a number of occasions that
the reviewing court should pass by, without decision,
questions which were not urged [below].
Hormel v. Helvering, 312 U.S. 552, 556 (1941).
10
See
But these
powers fall far short of the power the parties themselves have
to develop fully the factual record at trial through compulsory
process and confrontation - tools that are not available in a
Court of Criminal Appeals.
57 M.J. at 141.
11
We refused
The case before us does not present the issue of whether waiver is
applicable when credit for illegal pretrial punishment is not requested at
trial.
12
Perhaps
First, in
As
Second, this
In
Even if
_ M.J.
(3).
I would not be so quick to relieve military judges of
their responsibility for providing credit where credit is
due.
If indeed an appellant
If the trial
That
Therefore, it is